All posts by Nicholas Stephanopoulos

Gerrylaundering in Wisconsin

Rob Yablon recently posted a terrific new article, Gerrylaundering, criticizing mapmakers who prioritize changing districts as little as possible when they redistrict. Gerrylaundering, Yablon points out, is especially pernicious when the prior plan was a gerrymander. In that case, while nominally neutral, gerrylaundering in fact perpetuates the gerrymander for another decade.

An interesting case of mapmakers trying to get a court to gerrylaunder is ongoing in Wisconsin. Wisconsin’s current maps are among the most gerrymandered in modern American history. But Republican legislators can’t just redraw those maps because the governor, Tony Evers, is a Democrat. So Republicans have gone to the Wisconsin Supreme Court asking it to gerrylaunder for them. According to the legislature’s brief, the court should either adopt the legislature’s new proposed maps (which Evers is sure to veto) or apply a “least change” principle to Wisconsin’s existing gerrymanders.

Harvard Law School’s new Election Law Clinic (in which I teach) filed an amicus brief in this matter on behalf of the plaintiffs from last decade’s Whitford v. Gill litigation. The brief notes that “least change” is nowhere to be found in the Wisconsin Constitution’s list of redistricting criteria. Nor have Wisconsin’s previous line-drawers (legislative or judicial) ever tried to keep old districts intact. Outside Wisconsin as well, least-change is a vanishingly rare and disfavored criterion. Almost no states include it in their redistricting requirements and almost no courts choose to use it — precisely because of how it extends existing biases into the future.

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“Q&A: Measuring Partisan Fairness in Maps”

I did this Q&A for Democracy Docket on redistricting, measures of partisan fairness, computer algorithms, and more. Here’s the last question and answer from our exchange:

Now that the Supreme Court has held partisan gerrymandering claims to be non-justiciable, what are other applications/uses for metrics measuring partisan effects?

The metrics can play the same role in state constitutional litigation that they previously played in the federal courts — as one kind of evidence of partisan gerrymandering. The metrics can also be used by commissions and other line-drawers who are trying to achieve partisan fairness, not unfairness. And the metrics can help mobilize journalistic coverage, popular outrage and efforts to reform. That’s one of the goals of sites like PlanScore — to make it blindingly obvious to everyone when maps are biased and thus corrosive of basic democratic values.

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Partisan Fairness Criteria in Action

One of the last decade’s most interesting redistricting developments was the adoption of explicit partisan fairness criteria by Michigan and Ohio (sites of two of the 2010s’ most egregious gerrymanders). In Michigan, the new independent commission is required to draw districts that don’t “provide a disproportionate advantage to any political party.” “A disproportionate advantage,” the state constitution continues, “shall be determined using accepted measures of partisan fairness.” In Ohio, if the state legislature enacts a congressional plan by a majority (not a three-fifths supermajority) vote, then the plan must not “unduly favor[] or disfavor[] a political party.” For state legislative maps, “the statewide proportion of districts whose voters . . . favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.”

So how have these criteria fared so far? In Michigan, the independent commission decided to consider four measures of partisan fairness (the efficiency gap, deviation from proportional representation, the mean-median difference, and the winning margin difference). The commission also specified that these metrics would be calculated using an aggregate of statewide elections from 2012 to 2020. The commission hasn’t yet finalized its plans but its draft maps, drawn to satisfy this criterion, are dramatically fairer than their predecessors. At the congressional level, for example, the commission’s three draft maps all have efficiency gaps around 1%—compared to an efficiency gap of almost 20% (in a Republican direction) for the 2010s plan.

In Ohio, on the other hand, the Republican-dominated commission flouted the new partisan fairness requirement. Over the last decade, Republican candidates have won an average of 55% of the vote in statewide races. Yet the commission’s state house plan has a Republican seat share of 67%, and its state senate plan has a Republican seat share of 69%. The commission’s required explanation for its plans was also risible. It conceded that, on average, Republican candidates have won just a narrow majority of the statewide vote in recent years. But, the commission continued, “Republican candidates won thirteen out of sixteen of those elections resulting in a statewide proportion of voters favoring statewide Republican candidates of 81% and a statewide proportion of voters favoring Democratic candidates of 19%.” Therefore, “the statewide proportion of districts whose voters favor each political party corresponds closely to the statewide preferences of the voters of Ohio.”

The sleight of hand here is obvious. The commission substituted the proportion of races won by Republican candidates (81%) for the proportion of the vote received by Republican candidates (55%). The latter figure—Republican statewide vote share—represents “the statewide preferences of the voters of Ohio” under both the Ohio Constitution and all accepted methods for assessing partisan fairness. The former figure—Republican candidates’ win rate—is simply irrelevant. Using that flawed statistic, one would have to conclude that the commission’s plans are significantly biased in a Democratic direction. After all, 31% to 33% of the plans’ districts are Democratic—far higher than the 19% of Democratic candidates who prevailed in statewide elections in the 2010s. If Republicans had managed a clean sweep of statewide elections over the last decade, under the commission’s logic, they would be entitled to every single state legislative seat.

What accounts for Michigan’s and Ohio’s very different experiences (to date) with partisan fairness criteria? Most likely, the identity of the line-drawing institution. Michigan’s commission is independent of political actors and balanced among Democratic, Republican, and Independent members. These commissioners have no reason not to faithfully follow all state constitutional requirements. In contrast, Ohio’s commission is composed entirely of politicians and has five Republican and two Democratic members. This Republican supermajority has every incentive to gerrymander (and then to concoct implausible accounts of how its actions actually comply with legal criteria).

The implication for reformers is that, to achieve partisan fairness without judicial involvement, partisan fairness criteria should be paired with structural change—that is, the adoption of a truly independent redistricting commission. As Ohio’s experience demonstrates, partisan fairness criteria alone, unaccompanied by structural change, may easily be ignored by political actors. To be sure, state courts may ultimately insist on compliance with Ohio’s partisan fairness criteria. (Ohio’s new plans immediately prompted a flurry of lawsuits.) But redistricting litigation is costly and time-consuming. Its outcome is also never certain, even given as clear a violation as that presented by Ohio’s facts, due to the issue’s intense politicization. Whenever possible, it seems better to avoid courts and to rely on the structure of the redistricting process itself to prevent gerrymandering.

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“The Future of Felon Disenfranchisement Reform: Evidence from the Campaign to Restore Voting Rights in Florida”

Desmond Meade won the MacArthur genius grant earlier this week for his campaign to restore voting rights to people with felony convictions in Florida. Michael Morse recently wrote about his historic effort and what Amendment 4 means for the future of felony disenfranchisement reform. Below is the abstract for Morse’s California Law Review article:

This Article offers an empirical account of felon disenfranchisement and legal financial obligations in the era of mass incarceration. It focuses on a 2018 ballot initiative, known as Amendment 4, which sought to end lifetime disenfranchisement in Florida. At the time, the Republican controlled state accounted for more than a quarter of the six million citizens disenfranchised across the United States. Marshaling hundreds of public information requests, the Article analyzes the petitions collected to qualify the initiative for the ballot, the ballots cast for its remarkable bipartisan victory, the voter registration records of people whose voting rights were restored, and the outstanding fines and fees that still prevent most people with felony convictions from voting. Part I offers a history of the campaign and the tradeoffs it made to win Republican support, including its decisions to deemphasize race and limit the scope of reform. Part II validates the campaign’s effort to depoliticize disenfranchisement by demonstrating the limited partisan consequences of restoring the right to vote to people with felony convictions. Finally, Part III shows how unpaid fines and fees undermined the campaign’s attempt to dismantle disenfranchisement. Despite Amendment 4, Florida continues to disenfranchise more citizens than any other state.

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The Rebuttable Presumption of Gerrymandering

The new Freedom to Vote Act has many interesting pieces, but I want to focus here on the rebuttable presumption of gerrymandering that’s at the core of the Act’s redistricting provisions. In a nutshell, this presumption kicks in if a court finds that an enacted plan (1) exceeds a certain quantitative threshold (2) with respect to certain prior elections (3) according to certain measures of partisan fairness. If the presumption is triggered, a plan can’t be used unless a court ultimately concludes that, actually, the plan was not “drawn with the intent” and does not have “the effect of materially favoring or disfavoring any political party.”

Threshold: I’ll now unpack the different parts of the rebuttable presumption, starting with the quantitative threshold. It’s defined as “partisan advantage or disadvantage in excess of 7 percent or one congressional district, whichever is greater.” A bias score can be converted from a percentage to a number of seats simply by multiplying it by the size of a state’s congressional delegation. For example, Washington has 10 congressional seats. So if a Washington congressional plan has a pro-Democratic bias of 7%, that’s equivalent to a pro-Democratic bias of 0.7 seats.

In practice, the one-seat threshold will be the binding constraint for smaller states (those with 14 or fewer congressional seats). That’s because, in those states, a bias of one seat is always larger than a bias of 7%. On the other hand, the 7% threshold will be the binding constraint for larger states (those with 15 or more congressional seats). That’s because, in those states, a bias of 7% is always larger than a bias of one seat. Note also that these thresholds don’t allow for any rounding. A bias of 1.1 seats (in a smaller state) or 7.5% (in a larger state) exceeds the limit.

Prior elections: Of course, partisan bias doesn’t exist in the abstract. It has to be calculated using particular election data. The Act specifies exactly what data should be employed for this purpose: the two most recent presidential elections and the two most recent Senate elections in a state. An enacted plan’s bias has to be computed with respect to each of those four elections. The plan is presumptively unlawful if it exceeds the applicable threshold (7% or one seat) in “2 or more of the 4 elections assessed.”

Consider Washington again. Its recent presidential and Senate elections have been remarkably consistent. In 2016, Hillary Clinton and Patty Murray each won 59% of the two-party vote. In 2018, Maria Cantwell won 58% of the two-party vote. And in 2020, Joe Biden won 60% of the two-party vote. These four elections provide the data to be used to evaluate any new Washington plan. Any new plan can exceed a bias of one seat in at most one of the four elections. Any new plan that exceeds a bias of one seat in two or more of the four elections is presumptively invalid.

Partisan fairness measures: This leaves the question of how to measure partisan bias. The Act states that the only metrics that can be consulted are “standard quantitative measures of partisan fairness that relate a party’s share of the statewide vote to that party’s share of seats.” The term “standard” does the work of excluding newfangled metrics that aren’t accepted in the academic literature and may even have been devised for litigation purposes. More significantly, the other italicized phrase excludes metrics that don’t specify an optimal seat share for a party’s given statewide vote share. Partisan asymmetry is thus excluded as a metric since it permits any vote share to result in any seat share (as long as, if the parties’ positions were flipped, the same seat share would follow from that vote share). The mean-median difference and the declination are also excluded because they’re not calculated using a party’s seat share.

On the other hand, the efficiency gap is plainly included. In its preferred form, it’s calculated using the formula S – (2 * V), where S is the difference between a party’s seat share and 50% and V is the difference between a party’s statewide vote share and 50%. Also included, at least as long as it’s considered a “standard” measure, is a plan’s deviation from proportional representation. That deviation is computed by simply subtracting a party’s seat share from its statewide vote share.

In situations where the efficiency gap and disproportionality both point in the same direction, consulting two metrics instead of one is unproblematic. What about when they disagree—when a plan’s efficiency gap in a given election is above (below) the threshold but a plan’s disproportionality is below (above) that line? This is where the Act, admirably detailed as it is, finally runs out of steam. In my view, the better approach is to count a strike against a plan only when it exceeds the applicable threshold under both the efficiency gap and disproportionality. If a plan is above the threshold using one measure, but below it using another, I wouldn’t call that a strike. In effect, this approach lets states choose whether they prefer to aim for a low efficiency gap or for low disproportionality. States wouldn’t be compelled to achieve a low efficiency gap and low disproportionality simultaneously—an impossible goal in certain circumstances.

Return to Washington one more time. As noted above, Democratic candidates in the four reference elections received about 60% of the two-party vote. Given this statewide Democratic vote share, minimizing the efficiency gap would entail Democrats winning seven of ten seats, while minimizing disproportionality would entail Democrats winning six of ten seats. Under my preferred reading of the Act, Washington could use either of those benchmarks depending on whether the state wanted a modest winner’s bonus for the majority party (provided by the efficiency gap) or no winner’s bonus at all (per disproportionality). Many outcomes—like nine or more, or four or fewer, Democratic seats—would result in both efficiency gaps and disproportionality values above the applicable threshold. But a considerable range of other outcomes would be allowed because they would produce a sufficiently low score on at least one metric.

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“The Sweep of the Electoral Power”

Constitutional Commentary has published this article of mine on Congress’s authority to regulate elections. Here’s the abstract:

Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts.

Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.

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Observations about the JLVRAA

Thanks to Travis for his terrific summary of the John Lewis Voting Rights Advancement Act, which was finally introduced yesterday. A few observations about the bill:

1. Crossover districts: Instead of overriding Bartlett v. Strickland and allowing plaintiffs to win where only crossover (as opposed to majority-minority) districts could be drawn, the JLVRAA codifies Bartlett’s holding. It states that, “as a threshold matter,” minority members must be “sufficiently numerous . . . to constitute a majority in a single-member district.” It’s interesting that a bill that overrides other Supreme Court precedents (like Shelby County and Brnovich) declines to take on Bartlett.

2. The Brnovich fix: The JLVRAA lists and rejects the five factors for vote denial claims that the Court plucked out of thin air in Brnovich. (I supported this approach to overriding Brnovich in my House testimony last month.) The JLVRAA also specifies what should replace the Court’s five made-up factors: the two-part test that most lower courts used prior to Brnovich. Under this test, a plaintiff must establish that an electoral practice (1) causes a racial disparity (2) through its interaction with social and historical conditions of discrimination. What’s missing from this test, as I argued in this article, is explicit consideration of the state’s justification for the practice (as well as the fit between the practice and the state’s interest). I’d therefore recommend adding a third prong to the test along the following lines: “(C) the defendant cannot show that the challenged qualification, prerequisite, standard, practice, or procedure is necessary to achieve a substantial state interest.” This amendment would harmonize the VRA with the rest of disparate impact law. It would also reduce the provision’s constitutional vulnerability.

3. Section 2 retrogression: For decades, the essential substantive difference between Section 2 and Section 5 was that Section 2 enabled plaintiffs to improve the status quo while Section 5 guarded against the status quo’s deterioration. The JLVRAA eliminates that distinction by creating a cause of action under Section 2 for retrogression. This move also severs the historical link between preclearance and retrogression: Now jurisdictions not subject to preclearance could still be liable for retrogression.

4. The new coverage formula: To determine which jurisdictions are subject to preclearance, the JLVRAA uses the volume of voting rights violations over the previous twenty-five years. This is a reasonable approach that addresses the Shelby County Court’s complaint about the old coverage formula—namely, that it was obsolete and thus irrational. However, as Adam Cox and Tom Miles have explained, the number and success rate of lawsuits are mediocre proxies for the underlying prevalence of an activity. So we can’t necessarily infer that jurisdictions with many voting rights violations are, in fact, guilty of more racial discrimination in voting. They might just be home to more litigious plaintiffs, more incompetent defendants, or more receptive courts. In addition, it seems to me that findings of liability in racial gerrymandering (as opposed to racial vote dilution) cases count as voting rights violations. If that’s right, then quite a few of the qualifying violations involve merely expressive harms—not minority citizens actually being prevented from voting or underrepresented.

5. Practice-based preclearance: The JLVRAA breaks new ground in imposing practice-based preclearance nationwide. Sufficiently diverse jurisdictions everywhere in America would need permission before (among other things) switching from districted to at-large elections, enacting new district plans, adopting identification requirements, eliminating polling places, and implementing new voter roll purging policies. This section of the bill counters another objection of the Shelby County Court: that the old coverage formula improperly differentiated among the states. Practice-based clearance treats all states equally.

6. The Purcell fix: The JLVRAA halts the Supreme Court’s recent, troubling practice of denying relief because of the proximity of an election. The bill categorically forbids reliance on the Purcell principle when a suit is filed within 30 days of a practice’s adoption or more than 45 days before an election. Even in other cases, the bill makes it extremely difficult for Purcell to be successfully invoked. And critically, the bill nullifies Purcell not just for VRA suits but for essentially all election law claims: any involving the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, or Twenty-Sixth Amendments, the NVRA, HAVA, or UOCAVA.

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Don’t Conflate Competitiveness and Partisan Fairness

Rick Pildes and Ned Foley have recently posted about making districts more competitive in the next round of redistricting. Competition is plainly an appealing value. As Philip Edward Jones has shown, voters are better informed when races are more competitive, and incumbents are more accountable for their records (good or bad). A large number of competitive seats also leads to a high level of responsiveness for a district map—that is, parties’ seat shares changing briskly as their vote shares shift from one election to another.

However, it’s important not to conflate competitiveness with another critical value: the partisan fairness of district maps. Maps can be highly competitive but still severely skewed in one or another party’s favor (if that party consistently wins most of the competitive races). Maps can also be highly uncompetitive but entirely fair in how they treat the parties (if each party reliably wins an appropriate share of seats). And these aren’t just theoretical points: Eric McGhee and I found that, over five decades of state legislative redistricting, the partisan fairness of district maps was entirely unrelated to their competitiveness. As you can see in the chart below, there’s no link whatsoever between the absolute value of maps’ efficiency gaps (a measure of partisan fairness) and candidates’ average margin of victory (a measure of competitiveness).

Of course, the lack of a connection between competitiveness and partisan fairness doesn’t mean that line-drawers shouldn’t pursue greater competitiveness. It just means that they shouldn’t expect greater competitiveness to yield greater partisan fairness. If we want fair maps, we have to focus on fairness itself—not poor proxies for it.

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“Pay People to Vote”

Jon Gould and I wrote this column in the Atlantic about election reforms that Congress could pursue through budget reconciliation. This is definitely a Plan B compared to enacting the For the People Act and the John Lewis VRA through regular legislative procedures. But if the filibuster blocks progress on those bills, Congress should harness the power of federal dollars to improve American democracy. In this vein, it’s highly encouraging that the Democrats’ reconciliation instructions include the House and Senate Judiciary Committees — the bodies responsible for addressing election issues. Democracy may well join health care, child care, immigration, climate change, etc. in the Democrats’ reconciliation mega-bill.

Fortunately, a (partial) work-around exists that would allow democracy advocates to enact (some of) their agenda. This work-around is the same vehicle that’s being used to pass almost every other Democratic legislative priority: budget reconciliation. (Reconciliation is a special legislative process that fast-tracks certain types of bills—most notably by exempting them from the 60-vote threshold ordinarily needed to overcome a Senate filibuster.) The Democrats are already making use of reconciliation to address infrastructure, health care, education, climate change, and immigration. Election reform belongs on this list too.

It’s true that many needed election reforms—including the stuck democracy bills—are ineligible for reconciliation. Those approaches mostly rely on command-and-control regulation. They require states to adopt certain policies, such as automatic voter registration and mail-in voting, and forbid states from doing other things, such as gerrymandering and disenfranchising formerly incarcerated people. These mandates and bans aren’t allowed under reconciliation.

But reconciliation does permit measures that harness the power of federal dollars to improve elections. To be eligible for reconciliation, provisions need to have a budgetary impact—to raise or spend money. This fiscal effect also has to be meaningful. It can’t be “merely incidental” to the achievement of non-budgetary objectives. So command-and-control regulation is out, but monetary carrots and sticks that reshape actors’ incentives can be very much in.

An example of a fiscal carrot is a voucher for every eligible voter who actually votes: Cast a ballot, collect a check. This policy would be a potent response to the voting restrictions proliferating across the country. Those restrictions raise the cost of voting by adding time and hassle to the process. A voucher for every voter would offset that higher cost by increasing the benefit of voting. And if paying people to vote sounds outlandish, remember that’s exactly what we do for another civic duty: jury service. Every state compensates jurors for their work.

A second example, which could be a carrot or a stick, is funding for states that enact prodemocracy reforms. Congress could offer generous grants to states that institute policies such as automatic voter registration, mail-in voting, and independent redistricting commissions. Congress could also withhold election funds from states that refuse to take these steps. Federal dollars could thus be a reward for states that strengthen democracy—and a penalty for states that don’t.

City and county governments are a third potential group of funding recipients. In 2020, private donors gave hundreds of millions of dollars to municipalities to help them run their elections. Bizarrely, several red states have since prohibited these gifts. Congress could circumvent these bans by simply disbursing money to cities and counties, no strings attached, for election administration. These payments would enable municipalities to hire more election officials, to set up more polling places, to buy better equipment—in short, to make voting less of a chore.

And fourth, a robust system of public financing could make candidates less dependent on big donors. A proposal for such a system already exists in the For the People Act, and could be cleaved off from the bill’s regulatory provisions. Under this program, participating candidates would receive six federal dollars for each private dollar that’s given to them (for contributions up to $200). In return, they would forswear all other contributions and expenditures. As a result, these politicians would be less beholden to private funders and more responsive to their constituents. At least, that’s the program’s hope.

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More on the Judging Elections Clause

In a recent post, Ned expresses skepticism about the House exercising its power to judge its members’ elections. I agree that it’s a difficult political question whether the House should invoke its Article I, Section 5 authority. But as I explore in this recent paper, historically, legally, and practically, this strategy sits on firmer ground than Ned’s post suggests.

Historically, the House used to resolve electoral disputes all the time. Over its history, it has settled more than six hundred such cases. More significantly, the House has often used its Article I, Section 5 power to reject the apparent winners of House races and to seat their opponents. Around 120 contestants have prevailed in their challenges and so taken seats initially thought to have been won by someone else. In another 70 or so cases, the House vacated the seat and called for a new election. So it wouldn’t be “norm-shattering” for the House to make use of the Judging Elections Clause; it would be a revival of a precedent that held for much of U.S. history.

Legally, Ned objects to the House refusing to seat a beneficiary of gerrymandering because that practice isn’t “unlawful or tainted by any illegality.” But even the current Supreme Court, the same Court that authored Rucho, concedes that severe gerrymandering is unconstitutional. The Court just (wrongly) thinks that the practice is nonjusticiable and so can’t be policed by the federal courts. Nothing in Rucho hints that non-judicial actors, like the House, can’t enforce the constitutional prohibition on severe gerrymandering.

Moreover, the legality of an election under state or federal law isn’t dispositive for Article I, Section 5 purposes. What is dispositive is the House’s judgment about whether the election was conducted appropriately. Consider Ned’s example of the Fifteenth Amendment, which was ratified in 1870. In the Forty-First Congress—so prior to the Fifteenth Amendment’s ratification—the House unseated five Democrats from former confederate states (and replaced them with their Republican opponents). These Democrats owed their apparent elections to discrimination, violence, and fraud against African Americans: exactly what the Fifteenth Amendment would soon (but didn’t yet) prohibit. So the House unseated the Democrats not because of any unconstitutionality but rather because of the House’s own condemnation of racial discrimination in voting.

Finally, practically, there’s a straightforward way for a current House to prevent a future House from undoing its decisions about whom to seat or oust. It’s to make these decisions before the future House is sworn in, during the period between the election and the beginning of the next Congress. Having made these decisions, the current House would simply instruct the Clerk to seat members in the next Congress consistently with the current House’s determinations. It would be shocking if the Clerk, elected to her position by a majority of the current House, failed to follow that same majority’s instructions.

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Testimony on the Implications of Brnovich

I had the chance to testify at today’s House hearing on Brnovich and its implications along with Sean Morales-Doyle, Robert Popper, and Ezra Rosenberg. My written testimony can be found here, and a few excerpts are below (focusing on how Congress should respond to the Court’s decision).

This brings me to my third point: Congress need not and should not accept the shackles the Court has placed on Section 2. To restore Section 2 to its proper role, Congress should consider adopting the disparate impact framework that is already used in areas such as employment and housing—and that Justice Kagan endorsed in her powerful dissent. Under this approach, the plaintiff would first have to prove that an electoral practice causes a statistically significant racial disparity. The defendant would then have the chance to demonstrate, through particularized evidence, that the practice is necessary to achieve an important state interest. Finally, the plaintiff could try to show that this interest could be achieved by a different, less discriminatory policy.

This framework is deeply familiar to litigants and courts, having been in place for almost half a century. This framework also avoids the constitutional issues that might be raised by a pure disparate impact standard—one that invalidates laws solely because of their racial disparities. Most importantly, unlike the extratextual factors of the Brnovich Court, this framework is effective. It would impose liability whenever electoral regulations give rise to statistically meaningful and unnecessary racial disparities. It would thus further Congress’ objective, expressed in Section 2 but thwarted by the Brnovich Court, of American elections no longer plagued by racial inequities.                

But Congress should not just revise Section 2 in response to Brnovich. It should also protect the right to vote on a nonracial basis in two further ways. One of these is affirmatively specifying which electoral practices states must and must not use, at least in federal elections. This is the strategy of H.R. 1, the For the People Act, as the bill currently stands. The other way that Congress should safeguard the franchise is by creating a new cause of action, available to all citizens of all backgrounds, against unjustifiably burdensome electoral policies. This claim would be an ideal complement to Section 2, targeting needless burdens rather than racial disparities in the electoral process. In combination, the two theories would make voting both more racially equitable and more universally accessible.

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Brnovich and the Conflation of Disparities and Burdens

In mainstream constitutional law, there’s a sharp distinction between claims based on rights burdens and claims based on unequal treatment. Substantive due process is the quintessential doctrine of rights burdens. In that area, the theory is always that some right (privacy, procreation, abortion, etc.) has been overly or unjustifiably encumbered. In contrast, equal protection is the classic locus of grievances based on unequal treatment. Here, the argument is always that certain individuals have been treated differently than other individuals (often on the basis of race, sex, or some other protected classification).

The same distinction between rights burdens and unequal treatment holds when the Constitution is applied to election law. Anderson-Burdick sliding-scale scrutiny is the election law-specific doctrine of rights burdens. An Anderson-Burdick claim always asserts that the right to vote (or some other related right) has been impermissibly encumbered by some governmental regulation. It’s the degree of that encumbrance that’s pivotal under Anderson-Burdick—not whether the encumbrance is uniformly or differentially distributed among the population. On the other hand, the crux of a Bush v. Gore challenge is indeed the differential impact of some governmental policy (or set of policies). Most commonly, the argument is that voters in certain geographic areas are affected differently by electoral rules than voters in other geographic areas.

There’s no question on which side of this divide Section 2 of the Voting Rights Act falls. Section 2 is violated when elections aren’t “equally open” to minority citizens in that they have “less opportunity” than other citizens to participate. The italicized terms—equally, less—are the distinctive elements of an unequal treatment theory. They make clear that Section 2 seeks to eliminate racial disparities in voting. They also indicate that Section 2 isn’t concerned with burdens on voting per se. Voting burdens only fall within Section 2’s purview when they cause disparate racial impacts.

Regrettably, the Supreme Court’s decision in Brnovich blurred this distinction between rights burdens and unequal treatment. One of the Court’s five factors—“the size of any disparities in a rule’s impact on members of different racial or ethnic groups”—is entirely appropriate. The size and significance of racial disparities are highly relevant in all disparate impact suits. In fact, they’re the very first steps of the analysis under the framework used for disparate claims under Title VII, the Fair Housing Act, and many other statutes.

However, three of the Court’s factors involve rights burdens rather than unequal treatment. Factor one explicitly asks about “the size of the burden imposed by a challenged voting rule.” Factor two inquires whether a regulation was “standard practice” in 1982 (when Section 2 took its current form). This matters, according to the Court, because the 1982 status quo is a “benchmark[] with which the burdens imposed by a challenged rule can be compared.” And factor four instructs courts to “consider the opportunities provided by a State’s entire system of voting.” The whole electoral regime is relevant, again, because “any burden imposed on voters . . . cannot be evaluated without also taking into account the other available means” of voting.

The Court’s conflation of rights burdens and unequal treatment is unfortunate for two reasons. First, conceptually, it undermines a distinction that has long helped to organize constitutional law generally and election law specifically. Encumbering a right is just different, as a matter of logic and (until now) law, from treating people unequally. It’s confusing and unsettling to mix these two separate ideas.

Second, practically, the Court’s decision will force future plaintiffs to prove that an electoral regulation both causes a (sufficient) racial disparity and imposes a (sufficient) voting burden. It will no longer be enough for plaintiffs to establish a statistically significant disparate impact. They’ll also have to show that the disparate impact is the product of a rule that makes it too hard for all citizens (of all races) to vote. But this is just stacking the deck against plaintiffs so they’ll lose more often. It’s inventing additional hoops for plaintiffs in the hope that they’ll fail to jump through all of them. It’s ideological opposition to Section 2, not statutory interpretation.

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Brnovich and the Partial Unification of Disparate Impact Law

I wrote an amicus brief in Brnovich, based on this earlier law review article, recommending the same framework for Section 2 vote denial claims that’s already used for all other disparate impact claims. Under this framework, the plaintiff would first have to show that a particular electoral practice causes a significant racial disparity. Then the jurisdiction would have the chance to prove that the practice is necessary to achieve a substantial state interest. If the jurisdiction made that showing, the plaintiff would have a final opportunity to offer an alternative practice that causes a smaller racial disparity but that still achieves the jurisdiction’s stated interest.

The majority in Brnovich claimed that it rejected the usual disparate impact framework. According to the majority, “We also do not find the disparate-impact model employed in Title VII and Fair Housing Act cases useful here.” However, a better reading of the majority’s opinion is that it embraced some, but not all, of the usual framework. The majority didn’t fully unify disparate impact law, as I urged, but it did partially unify it.

There are two important points of similarity between the majority’s approach and the usual disparate impact framework. The first is that, in both cases, “[t]he size of any [racial] disparity matters.” Documenting a significant racial disparity is a plaintiff’s initial obligation in a conventional disparate impact suit. Doing so is also now critical in a Section 2 vote denial challenge.

The second overlap between the doctrines is that they both now emphasize the strength of a defendant’s interest and the extent to which it’s furthered by a given practice. According to the Brnovich majority, “the strength of the state interests served by a challenged voting rule is also an important factor.” More specifically, an electoral regulation must “reasonably pursue important state interests.” A regulation can’t be justified on the basis of an unimportant interest or if it’s an unreasonable way to promote an important interest.

Turning to the differences between the doctrines, one is that Section 2 vote denial law lacks the formal three-part structure of the usual disparate impact framework. The size of any racial disparity and the strength and fit of the defendant’s interests may be relevant in both cases. But those issues are analyzed simultaneously under the Brnovich majority’s approach, not sequentially as under the usual framework.

Another contrast involves how the fit between a practice and a defendant’s interest is scrutinized. The usual framework requires that a practice be necessary to achieve an interest. On the other hand, under the Brnovich majority’s approach, it’s sufficient if a practice is a reasonable means for pursuing an interest. This is obviously a more relaxed formulation that will allow more defendants to prevail on the issue of tailoring.

Lastly, three of the five factors named by the Brnovich majority have no analogue in the usual framework: the degree of the burden imposed on voting, the prevalence of practices today or in 1982, and the opportunities provided by a jurisdiction’s entire electoral system. To be sure, similar concerns often arise in Title VII and FHA cases. E.g., how onerous is a given employment or housing policy? How unusual is the policy (now or historically)? And how does the policy fit with rest of a defendant’s employment or housing procedures? But these questions are technically irrelevant under Title VII and the FHA, while they’re now material under Section 2.

Put this all together and you can see why the Brnovich majority’s supposed rejection of the usual framework is overblown. Yes, Section 2 vote denial law will now have certain idiosyncratic features (all, not coincidentally, disadvantageous for plaintiffs). But it will share with Title VII and the FHA a focus on whether racial disparities are significant and justified. Large and unwarranted disparities will be suspect under Section 2, just as they are under Title VII and the FHA. This isn’t the full unification of disparate impact law, but it is a step in that direction.

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Strong and Weak Claims After Brnovich

The most doctrinally significant portion of the Court’s opinion in Brnovich is part III.C.1, where the Court announces a series of factors that will be particularly salient in Section 2 vote denial cases from this point forward. These factors are (1) the magnitude of the voting burden imposed by a practice, (2) the degree to which a practice was widespread in 1982, (3) the size of the racial disparity caused by a practice, (4) the ease of voting under a state’s whole electoral system, and (5) the strength of the state interests underlying a practice. I just wrote a column criticizing these factors on the ground that they’re almost entirely divorced from the statutory text. But here I want to explore what they might mean for future litigation.

One implication is that relatively few challenges to early and mail-in voting regulations will succeed. As the Court’s opinion points out, early and mail-in voting barely existed in 1982. Any voting burdens imposed by states’ early and mail-in voting rules will also likely be perceived as light. After all, in the Court’s view, it would be permissible (and not unduly burdensome) for a jurisdiction not to offer early or mail-in voting at all. (The same point holds for other post-1982 developments like automatic and same-day voter registration, all-mail elections, drop boxes, curbside voting, etc.)

Second, challenges to relatively novel restrictions will be more likely to prevail. By definition, such restrictions weren’t prevalent in 1982. Because of their newness, their impositions may also seem to courts to exceed the usual burdens of voting. Notably, these novel restrictions may include photo ID requirements for voting. Photo ID laws were unheard of in 1982, and even today, they’re used in only a few states. The recent efforts at election subversion may also fall into this novel category (assuming they can be linked to racial disparities) since they’re unprecedented in modern times.

Third, we’re unlikely to see serious future suits that don’t try to quantify the magnitude of a practice’s disparate racial impact. As the Court noted, the Brnovich plaintiffs didn’t have statistical evidence about the size of the racial disparity caused by the third-party ballot-collection ban. Now that it’s clear that the size of the disparity matters, sophisticated litigants will always find experts to testify about that issue.

And fourth, since states’ whole electoral systems are now relevant, challenges should be stronger in states with lower turnout and/or higher costs of voting. Diverse low-turnout states (in 2020) include Alabama, Arkansas, Louisiana, Mississippi, New Mexico, New York, South Carolina, and Texas. Diverse states where the cost of voting is especially high include Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas. In these places, plaintiffs should be able to argue convincingly that states’ other voting opportunities are highly constricted.

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“The Supreme Court showcased its ‘textualist’ double standard on voting rights”

I wrote this column for the Washington Post on the Supreme Court’s decision in Brnovich. It concludes as follows:

It isn’t textualism to follow statutory language only when doing so is congenial to one’s ideological allies. It isn’t textualism to flout statutory language by creating out of thin air extra-textual checks on a disfavored claim. And it isn’t textualism to interpret the Voting Rights Act as one wishes it had been written, not as Congress actually wrote it. To return to Alito’s metaphor, this is what a judicial pirate ship looks like. It flies textualist colors while plundering one of the key statutory achievements of American democracy.

Still, the extent of the pillage shouldn’t be overstated. Plaintiffs will still be able to prevail in a number of Section 2 cases. Above all, these will be challenges to novel or unusual voting restrictions. By definition, these laws weren’t prevalent in 1982. Because of their newness or distinctiveness, their impositions are also likely to exceed the standard burdens of voting in courts’ eyes.

Additionally, nothing in today’s decision undermines Congress’s authority to correct the court’s blunder. There’s not a word suggesting that a more aggressive statutory test — for example, one invalidating any practice that causes a significant racial disparity unless it’s necessary to achieve a substantial state interest — would be constitutionally problematic. Fortuitously, Congress is considering the John Lewis Voting Rights Advancement Act, which would revive a different portion of the law. That bill is the ideal vehicle to fix this problem, too. By enacting some new statutory language, Congress could bring an end to the court’s extra-textual adventurism.

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